Human Rights Case Summaries

Governmental Obligations in Foreign Affairs and to Citizens Abroad

Canada (Prime Minister) v Khadr, 2009 FCA 246 (14 August 2009)

A majority of the Canadian Federal Court of Appeal recently held that Canada’s discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs, was fettered by the application of the Canadian Charter of Rights and Freedoms. The Court ordered Canada to request the repatriation of Omar Ahmed Khadr from the United States, by whom he was detained in Guantanamo Bay on terrorism-related charges.

MichelleBennett14 August 2009Counter-terrorism, Prisoner Rights

Freedom of Information and Access to the Courts

Brümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009)

On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain circumstances, statutory time limitations for the filing of appeals may be unconstitutional.

MichelleBennett13 August 2009Human Rights Law & Institutions, Democratic Freedoms

Freedom of Information, Freedom of Expression and the Charter

Smeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009)

The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the transfer was to place the documents beyond the Applicant’s reach as, once a document is transferred to the Ombudsman, it is immune from release: s 29A of the Ombudsman Act 1973. The application for review was dismissed on the basis that VCAT does not have jurisdiction to review the relevant decision: s 50(2) of the FOI Act.

MichelleBennett5 August 2009Human Rights Law & Institutions, Democratic Freedoms

Assisted Suicide and Human Rights: DPP Should Issue Guidelines on Exercise of Prosecutorial Discretion

Purdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009)

In this case, the House of Lords found that art 8 of the European Convention of Human Rights compelled the DPP to issue specific guidelines as to when prosecution would be recommended for a person who had assisted another to commit suicide.

MichelleBennett30 July 2009Privacy, Human Rights Law & Institutions, Health

Freedom of Religion May be Limited where Effects of Limitation are Proportionate and Justifiable

Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009)

In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken for the grant of a driver’s licence. The regulation was held to be constitutional because it is a justifiable limit on the right to religious freedom; and does not constitute religious discrimination against the respondents.

MichelleBennett24 July 2009Democratic Freedoms, Human Rights Law & Institutions

Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy

N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)

The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful. Specifically the Court held that art 8 of the European Convention of Human Rights does not protect the right to smoke.

MichelleBennett24 July 2009Privacy, Disability & Mental Health

Legality and the Presumption against the Abrogation of Fundamental Freedoms: Control Orders Cannot Abrogate Fundamental Rights without Express Authority

Secretary of State for the Home Department v GG [2009] EWCA Civ 786 (23 July 2009)

The Court of Appeal of England and Wales has considered the Home Secretary’s power to restrict a person’s liberty with a control order made under the UK Prevention of Terrorism Act 2005. The Court held that broad powers under the relevant legislation had to be read consistently with the common law principle that fundamental rights must not be abrogated without express parliamentary authority.

MichelleBennett23 July 2009Counter-terrorism, Prisoner Rights, Democratic Freedoms

Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy

JF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009)

The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting obligations for certain sex offenders, without the possibility of any future review, imposes a disproportionate limit on the right to privacy.

MichelleBennett23 July 2009Privacy

Equal Opportunity Exemptions and Special Measures under the Charter

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)

The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable it to conduct women-only swimming sessions and related programmes. Deputy President McKenzie held that the exemption was a special measure for advancing equality and imposed a reasonable limitation on the right of men to non-discrimination and freedom of movement under the Charter. Her reasons are very similar to those that she stated in the matter of YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009).

MichelleBennett17 July 2009Discrimination & Equality

Rights of the Child and Minimum Sentencing Legislation

Centre for Child Law v Minister for Justice and Constitutional Development and Others (with the National Institute for Crime Prevention and the Re-integration of Offenders as Amicus Curiae) [2009] ZACC 18 (15 July 2009)

The Constitutional Court of South Africa upheld a decision of the High Court declaring invalid provisions of the Criminal Law (Sentencing) Amendment Act 38 (2007) (Amendment Act) that made minimum sentences for certain serious crimes applicable to 16 and 17 year old children. The provisions were found to negate the Constitution’s principles that children should only be detained as a last resort and for the shortest period of time.

MichelleBennett15 July 2009Child Rights, Human Rights Law & Institutions

Freedom of Expression and Restrictions on Political Advertising

Greater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009)

The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.

MichelleBennett10 July 2009Democratic Freedoms

Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter

AC (Guardianship) [2009] VCAT 1186 (8 July 2009)

This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was placed on a Supervised Treatment Order (‘STO’) under the Disability Act 2006 (Vic). The STO required him to be under constant supervision and allowed him to leave Sandhurst only in restricted circumstances and under the supervision of two staff members. In 2009, AC applied to the Victorian Civil and Administrative Tribunal for review of the STO. AC wanted the STO to be revised so that he could come and go from Sandhurst as he wished during the daytime and have much more freedom in the community. AC stated that he was prepared to remain at Sandhurst and receive treatment voluntarily. The Department of Human Services opposed AC’s application.

MichelleBennett8 July 2009Disability & Mental Health, Health

Right to Privacy and Unlawfulness of Eviction into Homelessness

Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009)

The Victorian Civil and Administrative Tribunal (‘VCAT’) has held that a non-profit welfare agency acted unlawfully pursuant to s 38(1) of the Victorian Charterin seeking to evict a young tenant from transitional housing in accordance with a ‘youth tenancy policy’ in circumstances in which it was likely that the tenant would thereby become homeless.

MichelleBennett6 July 2009Privacy, Housing

Freedom of Expression and the Restrictions on Advertising regarding Cruel Treatment of Animals

Verein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009)

In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with an individual’s rights under the European Convention on Human Rights, but in some circumstances there is a positive obligation on the State to ensure that an individual is afforded guarantees under the Convention. In this case, the State was required to ensure the full and proper execution of a judgment of the European Court to remedy a breach of the Convention and the failure to adequately do so constituted a fresh breach of the Convention.

MichelleBennett30 June 2009Democratic Freedoms

Supreme Court of Canada Balances the Right to Freedom of Religion and the Best Interests of Children

AC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009)

On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their own medical decisions. The Court held that the wishes of the child must be considered when determining what action was in the child’s best interests.

MichelleBennett26 June 2009Democratic Freedoms, Child Rights

UK Court of Appeal Considers Definitions of ‘Public Authority’ and ‘Private Act’

London & Quadrant Housing Trust v Weaver, R (On the application of) [2009] EWCA Civ 587 (18 June 2009)

A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’. The decision warrants attention for a number of reasons. First, the decision acts as clear authority that a social landlord is a public authority, and that the act of terminating the tenancy of a tenant is not a private act and is therefore susceptible to judicial review under the Human Rights Act 1998 (UK) (‘HRA’). Second, the decision highlights the need for clear legislative guidance on what constitutes a ‘public authority’. This is discussed further below.

MichelleBennett18 June 2009Housing

Supreme Court holds that the ‘Interests’ of Mortgagors include their Right to Protection from Arbitrary Interference with the Home

Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009)

The Supreme Court of Victoria recently confirmed that fundamental human rights, both in international law and the Victorian Charter, are relevant interests that must be considered when a mortgagee sells a property to satisfy a debt. This is especially relevant where a debt is secured over a family home.

MichelleBennett18 June 2009Housing

Freedom of Expression and the Right to Privacy: Reporting the Name of a Person Acquitted of Rape

Attorney-General's Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009)

The House of Lords has held that, in the interests of the right to freedom of expression, it was a reasonable intrusion on the right to privacy to publish the name of a defendant acquitted of rape.

MichelleBennett17 June 2009Privacy, Democratic Freedoms

Evictions Must be Just, Equitable and Reasonable

Residents of Joe Slovo Community v Thubelisha Homes & Ors [2009] ZACC 16 (10 June 2009)

The South African Constitutional Court has upheld a High Court decision to grant an application to evict approximately 20,000 residents of the informal settlement known as the Joe Slovo settlement. The eviction was sought by Thubelisha Homes (a government company), the Minister for Housing and the Minster of Local Government and Housing (together, the ‘Respondents’) for the development of an affordable housing project in the Western Cape (the ‘Project’).

MichelleBennett10 June 2009Housing

Right to a Fair Hearing, Control Orders and Counter-Terrorism

Secretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009)

Nine Lords of the House of Lords have unanimously followed the Grand Chamber of the European Court of Human Rights in Strasbourg (ECHR) in the decision of A v United Kingdom. That decision clarified that where a person subject to a 'control order' under the Prevention of Terrorism Act 2005 (PTA) challenges its validity, he or she must be given sufficient information to effectively answer the allegations against them. The reading down of the PTA to include a right to a fair trial means control orders cannot be based entirely on evidence undisclosed to the 'controlee'.

MichelleBennett10 June 2009Counter-terrorism, Prisoner Rights, Foreign Policy

Application of the Charter in Planning Disputes

Swancom Pty Ltd v Yarra CC [2009] VCAT 923 (10 June 2009)

On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to local government planning decisions.

MichelleBennett10 June 2009Human Rights Law & Institutions

European Court Considers State Obligations to Prevent and Address Domestic Violence

Opuz v Turkey [2009] ECHR 33401/02 (9 June 2009)

In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her mother from domestic violence. In the landmark decision, the Court held that domestic violence is a form of discrimination that states are required to eliminate and remedy. The case brings the Court’s jurisprudence in line with international human rights law, which has long recognised such violence as a form of discrimination.

MichelleBennett9 June 2009Human Rights Law & Institutions, Discrimination & Equality

Unreasonable Delay in Criminal Proceedings: Supreme Court of Canada Holds 30 Month Delay Unconstitutional

R v Godin, 2009 SCC 26 (CanLII) (4 June 2009)

The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial. The Court held that the accused’s right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms had been violated.

MichelleBennett4 June 2009Human Rights Law & Institutions

Costs in Public Interest and Constitutional Litigation

Trustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009)

The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and the state is that if the private party is successful, it should have its costs paid by the state, and if unsuccessful, each party should pay its own costs.

The litigation must raise a genuine constitutional issue and any perceived ‘misconduct’ on the part of the applicant would need to be of such a compelling kind to justify a departure from the general rule. The Court held that the over-arching principle is not to discourage the pursuit of constitutional claims.

MichelleBennett3 June 2009Human Rights Law & Institutions

Monitoring and Confidentiality of Prisoner Correspondence

Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009)

The European Court of Human Rights has held that it is a disproportionate interference with an individual's right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant's correspondence with his specialist be opened and inspected by the prison medical officer to ensure that there were no illicit enclosures. The applicant had sought to correspond confidentially with his specialist to ensure that he was receiving appropriate care and supervision with respect to his potentially life-threatening condition. The applicant, who had lost before the UK Court of Appeal, successfully argued that, by analogy with legal correspondence, the risk of his abusing the confidentiality of his correspondence for illicit purposes was outweighed by the likelihood that inspecting his correspondence would inhibit what he conveyed to the specialist, thereby harming the quality of advice that he received.

MichelleBennett2 June 2009Privacy, Prisoner Rights, Health

Surveillance of Protests and the Right to Privacy

Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009)

The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.

MichelleBennett21 May 2009Privacy, Democratic Freedoms

Vexatious Litigants and the Rights to a Fair Hearing, Access to a Court and Legal Aid

Kay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009)

In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair hearing under s 24 of the Victorian Charter. The Court held that while the right to a fair hearing subsumes a right to access the courts and, in certain cases, a right to legal aid, these rights are not absolute and may be subject to reasonable limitations. In the circumstances, the Court considered the vexatious litigant order to be a reasonable limitation.

MichelleBennett19 May 2009Human Rights Law & Institutions

Right of Access to Court Imposes Positive Obligation on Courts to Inform Litigants of Rights and Entitlements

Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009)

The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining expert evidence will not justify extended pre-trial detention, and that prohibition of contact with family members who are witnesses may be a permissible limitation on the right to family.

MichelleBennett19 May 2009Prisoner Rights, Human Rights Law & Institutions

Extraterritoriality and the Right to Life

Secretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009)

The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes of the Human Rights Act 1998 (UK). The United Kingdom is therefore obliged to extend protection under the Act to its soldiers serving overseas even when they are not on military bases.

MichelleBennett18 May 2009Human Rights Law & Institutions

Referral of Question of Law under Victorian Charter

De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009)

For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the Charter. The referred question is whether VCAT's implied statutory power to stay a civil proceeding (in particular, the McMahon v Gould guidelines applicable to that power) should be revised in light of ss 24 and 25 of the Charter, and if so, how.

MichelleBennett13 May 2009Human Rights Law & Institutions, Police

Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits

Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)

This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits. The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding. In light of this security risk, the use of handcuffs did not constitute degrading treatment. Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.

MichelleBennett13 May 2009Prisoner Rights, Health, Disability & Mental Health

Right to Legal Aid and a Lawyer of One's Choice

Hakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009)

The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer. This case was the first application made under amendments to the Human Rights Act 2004 (ACT) creating a new cause of action for breach of human rights, which came into force on 1 January 2009.

MichelleBennett12 May 2009Human Rights Law & Institutions

Meaningful Review Necessary to Justify Continued Detention

Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009)

The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.

MichelleBennett6 May 2009Prisoner Rights, Human Rights Law & Institutions

Deportation and Non-Refoulement

X v Australia, UN Doc CAT/C/42/D/324/2007 (5 May 2009)

Mr X, a Palestinian born in Lebanon in 1960, was detained at the Villawood Detention Centre in Australia. He sought political asylum in Australia, however, his request was rejected and he risked forcible removal to Lebanon. He claimed, inter alia, that by deporting him, Australia would violate his rights under art 3 of the Convention against Torture (CAT).

MichelleBennett5 May 2009Refugee & Asylum Seeker Rights, Human Rights Law & Institutions

Right to Equality and Exemptions under the Equal Opportunity Act

YMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)

This case explores the relationship between human rights and equal opportunity legislation. It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act 1995 to enable it to conduct women-only swimming sessions and related programmes. This exemption was held to conform with the rights to equality and non-discrimination set out in the Charter.

MichelleBennett4 May 2009Discrimination & Equality, Human Rights Law & Institutions

House of Lords considers Right to Fair Hearing and Presumption of Innocence in Context of Confiscation Orders

R v Briggs-Price [2009] UKHL 19 (29 April 2009)

The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to which a defendant has not been charged. This practice does not infringe the defendant's right to the presumption of innocence or right to a fair trial under the European Convention on Human Rights.

MichelleBennett29 April 2009Human Rights Law & Institutions

Right to Privacy and Tenancy Rights

Vojnovic v Croatia, UN Doc CCPR/C/95/D/1510/2006 (28 April 2009)

The Human Rights Committee held that a lawful termination of tenancy rights under Croatian law amounted to an arbitrary interference with the right to home and violated art 17 of the International Covenant on Civil and Political Rights. The termination of the tenancy was held to be arbitrary as it was exercised in an unfair and discriminatory way.

MichelleBennett28 April 2009Housing, Privacy, Foreign Policy

Mental Health: Kracke v Mental Health Review Board & Ors

VCAT Makes Declaration of Breach of Human Rights in Major Charter Test Case

On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a much anticipated decision which discussed in detail important aspects of the application and operation of the Charter. The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic).

MichelleBennett27 April 2009Disability & Mental Health

UN Human Rights Committee Rules on Family Contact with Prisoners

Tornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009)

The UN Human Rights Committee has held that the rights of a prisoner's relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, will be infringed if prison authorities adopt a 'passive attitude' to keeping them informed of significant changes in the prisoner's heath.

MichelleBennett24 April 2009United Nations, Prisoner Rights

Obligations of States to Citizens Detained Abroad

Khadr v Canada (Minister for Justice) [2009] FC 405 (23 April 2009)

On 23 April 2009, the Federal Court of Canada handed down a decision which discussed in detail the right of citizens to request their government to provide protection against acts which violate accepted norms of international law during a period of detention in a foreign country.

MichelleBennett23 April 2009Prisoner Rights, Counter-terrorism

Failure to Review Involuntary Treatment a Breach of Human Rights

Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)

On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter.

MichelleBennett23 April 2009Health, Disability & Mental Health, Human Rights Law & Institutions

Canadian Supreme Court Considers Right to Privacy

R v Patrick, 2009 SCC 17 (CanLII) (9 April 2009)

The Supreme Court of Canada has held that no privacy interest exists in the contents of garbage bags placed out for collection. Police had seized garbage bags from an individual's property, and used their contents to justify obtaining a warrant to search his home. The individual was subsequently convicted of possessing, producing and trafficking ecstasy. He unsuccessfully argued in the Supreme Court that the police's actions breached the Canadian Charter of Rights and Freedoms.

MichelleBennett9 April 2009Privacy, Foreign Policy

Courts and Tribunals Directly Bound by Charter Rights

De Simone v Bevnol Constructions and Developments Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009)

The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 (rights in criminal proceedings) of the Victorian Charter when they exercise functions engaging those rights.

In this case, there was a possibility that VCAT had erred by not taking ss 24 and 25 into account when refusing to stay civil proceedings. However, no substantial injustice was caused by the refusal and the Court of Appeal therefore declined to overturn VCAT's decision.

MichelleBennett3 April 2009Human Rights Law & Institutions

Detention and Treatment in Government-Run 'Sobering Up' Centre may Amount to Ill-Treatment

Wiktorko v Poland [2009] ECHR 14612/02 (31 March 2009)

The European Court of Human Rights has held that the treatment of a Polish national, whilst detained at a government-run 'sobering-up centre', constituted degrading treatment in violation of the substantive protection of art 3 of the European Convention on Human Rights. The applicant in this case was forcibly undressed by two male employees and was immobilised by restraining belts for a period of ten hours. Further, the Court held that subsequent investigations and proceedings carried out by Polish authorities were inadequate, in violation of the procedural limb of art 3 of the Convention.

MichelleBennett31 March 2009Foreign Policy, Human Rights Law & Institutions

Right to Fair Hearing and Legal Representation in Disciplinary Proceedings

Lam Siu Po v Commissioner of Police [2009] HKCFA 24 (26 March 2009)

In a case relating to the validity of a statutory bar to legal representation in police disciplinary proceedings, the Court of Final Appeal of Hong Kong established the following principles:

the right to a fair hearing in art 10 of the Hong Kong Bill of Rights can apply to disciplinary proceedings; and
the right to a fair hearing requires that a disciplinary tribunal consider permitting the respondent to be legally represented. Excluding the possibility of a tribunal from exercising such discretion will be inconsistent with art 10.

MichelleBennett26 March 2009Foreign Policy, Human Rights Law & Institutions, Police

Freedom of Expression and Public Participation in Decision-Making

Dixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009)

This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms. Garson J declined to follow earlier defamation case law on the basis that it was inconsistent with the right to freedom of expression. Her Honour held that a government body cannot sue individuals for defamation when those individuals speak out about the conduct of its governmental functions.

MichelleBennett26 March 2009Democratic Freedoms

Stay of Eviction into Homelessness Required to Prevent Violation of Human Dignity and Rights

Machele and 67 Others v William Marofane Mailula and Others [2009] ZACC 7 (26 March 2009)

The Constitutional Court of South Africa held that eviction will 'always' be a constitutional matter. The court further held an interim execution order for eviction was appealable where irreparable harm would result, were leave not granted. The applicants established irreparable harm largely on the basis that eviction involves the indignity and trauma of losing one's home.

MichelleBennett26 March 2009Housing, Foreign Policy, Human Rights Law & Institutions

South African Constitutional Court Considers the Right to Sufficient Water and a Dignified Life

City of Johannesburg and Others v Mazibuko and Others (489/08) [2009] ZASCA 20 (25 March 2009)

In this case, the Supreme Court of South Africa considered whether a local authority had a duty under the South African Constitution to provide free water to Phiri residents who could not afford to pay for such water themselves. The Court confirmed that all people in South Africa have the right to access sufficient water pursuant to s 27 of the South African Bill of Rights. It was held that 'sufficient water' is the quantity of water required for dignified human existence. On the facts of this case, Phiri residents were found to be entitled to 42 litres of water per person per day. Water metres which restricted Phiri residents' access to water were held to be unlawful.

MichelleBennett25 March 2009Human Rights Law & Institutions, Foreign Policy

Indefinite Detention Violates the Right to Liberty and Security of Person March 2009)

Canada (Citizenship and Immigration) v Li, 2009 FCA 85 (CanLII) (17 March 2009)

The Federal Court of Appeal of Canada ('FCA') has held that indefinite detention is a violation of the right to liberty and security of person.

MichelleBennett17 March 2009Prisoner Rights, Foreign Policy

State Obligation to Conduct Public Investigation into Potential Violations of the Right to Life and Prohibition against Ill-Treatment

AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009)

The UK Court of Appeal has affirmed that the government has an obligation to conduct an independent investigation where there is credible evidence of a potential breach of arts 2 (right to life) and 3 (prohibition against ill-treatment) of the European Convention on Human Rights.

MichelleBennett17 March 2009Prisoner Rights, Human Rights Law & Institutions, Foreign Policy